The court established that passing an order without hearing the caveator is illegal and can be set aside.

V. NEELADRI RAO, J.

( 1 ) THE Plaintiffs in O. S. No. 327/90 on the file of the Principal Subordinate judge, Tirupati are the revision petitioners. The suit was filed for permanent injunction. The petitioners also filed IA No. 2131/90 praying for temporary injunction pending disposal of the suit. That petition was allowed and temporary injunction was granted. Being aggrieved, the defendants respondents filed CM A No. 4/91 on the file of the 3rd Additional District judge, Tirupati. They also filed IA No. 224/91 praying for interim suspension of the Order of temporary injunction granted by the trial court. When the said petition had come up for consideration, it was made krown to the court that the plaintiffs filed a caveat. The relevant portion of the order of the appellate court reads thus :"i am of the opinion, even though there is caveat petition, it is expedient and it is necessary to pass some orders as per the represen- ation made by the learned Advocate for the petitioner as the respondents are found to damage the property by cutting the trees etc. Under the circumstances, interm stay of the order of the Lower Court is ordered and urgent notice by 19-2-91". This order is assailed in this revision petition.

( 2 ) IT is urgeed for the revision petitioners that when a caveat was filed and when that fact was brought to the notice of the appellate court, the said court had no jurisdiction to pass any order without hearing the other side i. e. , the revision petitioners, who are the respondents in IA no. 224/91.

( 3 ) SRI P. S. Narayana, the learned counsel for the respondents defendants contended that this revision petition itself is not maintainable as the order passed by the appellate court does not amount to a "case decided" as contemplated under Section 115 CPC. In support of the said contention, uppalapati Venkataratnam vs. Meka Venkata Sravanthi Devi and another is relied upon. In that case, it was held that if an ad interim order is passed, it is a case where order is passed without hearing the other side and the other side has no opportunity to represent his case before the concerned court, and unless an order is passed by the court after giving an opportunity to the other side, it cannot be treated as a case decided. As the impugned order is an ad interim order, it is urged for the respondents defendants, that this revision petition challenging the said order is not maintainable.

( 4 ) IT may be noted that the revision petitioners are challenging the impugned order not on merits at this stage but on the sole ground that the appellate court had no jurisdiction to pass the said order without hearing the revision petitioners who are the respondents in the interlocutory application as a caveat petition was filed. The appellate court had already given an opinion that even though there is a caveat petition, it is not a bar for the said court to pass the ad interim order even before hearing the caveator. Hence it has to be held that the lower court had already decided as to whether an order can be passed without hearing the caveator. As such this case can be treated as "case decided" in regard to the point as to whether the Court can pass an order without hearing the caveator. Hence, I find that this revision petition is maintainable.

( 5 ) IN C. Seethaiah vs. Government of Andhra Pradesh and others this Court held that if an order is passed without hearing the caveator, the same has to be held as illegal but not as viod. Under Section 115 (1) (c) cpc this court can interfere if the Lower Court acted in exercise of its jurisdiction illegally. The appellate court had a right to entertain an application filed under Order 41 Rule 5 CPC. But as already observed, the court cannot pass an order without hearing the caveator. if a caveat petition was filed in accordance with law, As in this case, the appellate court passed an order without hearing the caveator, it is a case of acting illegally in exercise of its jurisdiction. So the

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